Dedicated to advancing the business of franchising through the sharing of information and ideas.

Franchising and the Movies

02/01/2014

Okay, I'm taking a brief break from franchising to talk about my other passion in life -- movies. If you see me at the International Franchise Association's annual conference this month, be warned – if you get me started talking about movies, you may not be able to get me to stop.

You may have had a chance to read my article in this month's issue of Franchise Times. This is the promised continuation of my annual "top 10" list. In 2013, I saw more than 200 films. In anticipation of the upcoming 86th annual Academy Awards, I thought I would share my favorites of 2013 with the franchise community.

10. We’re The Millers

One of the hazards of seeing 200+ movies a year is that you see a lot (and I do mean a LOT) of previews. And you see them over… and over… and over again. Some previews you get absolutely sick of (I’m talking to you, “Grudge Match” and “Out of the Furnace”); others are a joy to watch every single time.

Paradoxically, when it comes to comedies, the trailers that make me most wary are the ones that are really funny – the ones that I don’t mind seeing several times. You know the type: the jokes come fast and furious, and leave the audience members guffawing. Why am I so circumspect about those previews? Because, in my experience, the funniness level of the trailer is inversely proportional to the humor in the actual movie. Most of the really funny stuff is spoiled in the trailer, foisting upon the eager moviegoer the leftovers: a series of limp, tired jokes that don’t live up to the promise of this preview.

Happily, “We’re The Millers” was an exception to this rule. The preview, which was one of the few that I enjoyed seeing multiple times, didn’t spoil most of the great jokes in the movie. My favorite comedy of the year, “We’re The Millers” had all the elements of a great comedy: likeable characters, an engaging plot, and actors (particularly Jason Sudeikis) that have that perfect mixture of timing and delivery that give the lines comedic impact.

Listen, recommending comedies is difficult because so much depends on the viewer’s sense of humor, which is completely subjective. What I find funny may not be what you find funny. So don’t be angry with me if you watch this movie and don’t laugh. Also, be warned – this movie is a hard “R.” If you’re easily offended, avoid this one.

9. Rush

“Rush” tells the story of a vicious rivalry between two Formula One racers in 1970s Europe: the handsome ladies’ man James Hunt (Chris Hemsworth) and the homely Austrian Niki Lauda (Daniel Bruhl). These men, matched on the racetrack, could not be more different in personality. James is reckless and a risk-taker in life, while Niki plays it safe; but it is James’s charisma and appeal that leads, indirectly to an accident on the track that nearly costs Niki his life.

A glimpse into a world I know nothing about, “Rush” is less about Formula One racing than it is about sportsmanship and respect between rivals. Director Ron Howard is working at the top of his game, balancing the stories of these men and their lives off the track with heart-pounding recreations of the races that defined their careers. While it was not successful at the box office, “Rush” is destined to join the pantheon of great sports movies.

8. The Kings of Summer

Joe is a teenager living with his recently-widowed father, a gruff man who uses his biting wit as a defense mechanism to cope with his own loneliness. Joe and his two friends, each of whom are dealing with their own problems at home, decide one summer to run away from home and live in a ramshackle house they build in the woods near their hometown. Enjoying their newfound freedom, the boys live the summer happily in the house until a girl enters the picture, when jealousy and pettiness threatens to destroy their friendship.

My favorite movie of Sundance 2013, “The Kings of Summer” is a coming-of-age film that is both incredibly funny and poignant in a way that feels authentic and natural. It’s a fun an easy watch, perfect for movie night at home (but it’s not for young kids or pre-teens).

7. The Sapphires

“The Sapphires” is another retread of that well-known story: four Aboriginal girls, facing massive racial discrimination in 1960s Australia, form a Motown-inspired girl group and tour war-torn Vietnam playing to U.S. servicemen. What, you say you’ve never heard that story before? Neither had I. I love it when I learn something new from a movie; it’s even better when the movie is as entertaining and infectious as this one.

Often, movies that deal with difficult subjects have an atmosphere of emotional gravitas that can leave the viewer drained. It is exceedingly rare for an inspiring film about overcoming adversity to also be infectiously optimistic and fun to watch. Somehow, “The Sapphires” manages exactly that.

Roger Ebert once said “no good movie is too long and no bad movie is short enough.” While that is true of almost all of the films on my top 10 list, “The Sapphires” was the 2013 movie that most surprised me when the credits started rolling – the 103 minute running time flew by, driven by charismatic performances wrapped around delightful musical performances that left me wanting more.

06/12/2013

This is an off-topic post, but if you have been reading my blog for some time, you will know that it's on an issue that is important to me: film incentives for Nevada. As I've previously written, Nevada was one of the few states in the country without tax incentives for companies that film their movies or television shows here. It's always been my opinion that the lack of these incentives has discouraged companies from filming here -- even when the action is set in Nevada.

Fortunately, that is all changing due to recent action from our legislature. The Nevada legislature recently passed SB 165, which was signed into law by Governor Sandoval on June 11, 2013. As a result, beginning on January 1, 2014, Nevada will offer tax credits to motion picture, television, and commercial productions that shoot at least 60% of their production here in Nevada and spend between $500,000 and $40 million in the state. Those companies are eligible to earn a transferrable tax credit worth 15-19% of their in-state qualified expenses. These "qualified expenses" include Nevada cast members, labor, crew members, and other Nevada expenditures.

I look forward to watching the film industry in Nevada grow with the advent of these incentives.

01/29/2013

“Escape From Tomorrow,” one of the most controversial films at the 2013 Sundance Film Festival, has put copyright and trademark law, as well as the question of what constitutes parody, in the spotlight. The film reminds companies why it is important to protect their intellectual property: to prevent use (or misuse) by others.

“Escape” tells the story of a family on vacation at Disney World during the outbreak of a mysterious new flu virus. As family members tour the park, they are plagued by increasingly bizarre events that make the rides at the "Happiest Place on Earth" appear to have sinister undertones. As the film progresses, the audience is forced to question whether there really is something unpleasant lurking beneath the famously joyful facade, or if instead, the parents themselves are slowly losing their grip on reality.

Although the film is interesting in its own right, it has become both controversial and noteworthy because it was made "guerilla-style" at the Disney World and Disneyland theme parks without the knowledge or consent of Disney. The cast and crew are seen in the film walking the parks, riding the famous rides, and interacting with the beloved Disney characters without having names, likenesses or locations blurred or obscured. Moreover, ordinary park visitors, who did not know they were being filmed or consent to being in the movie, appear as the background actors.

In the end, Disney may not choose, and ultimately may not be able, to stop the general release of “Escape,” but the specter of IP protection at least gives Disney a possible avenue to pursue. Section 107 of the Copyright Act lists the various purposes for which the reproduction of a particular work may be considered fair use, such as criticism, comment, news reporting, teaching, scholarship, and research. The section also sets out factors to be considered in determining whether a particular use is fair including whether the work is of commercial nature.

Although the U.S. Supreme Court considers parody to be fair use, the particular facts are critical to the final outcome since there is a fine line between parody and a derivative work. Thus, whether the depiction of the Disney parks in "Escape" constitutes fair use could be a matter of interpretation.

“Escape” serves as a warning to those in marketing and sales about the risks of using intellectual property owned by others, such as copyrighted images, when developing promotional materials and webpages. Use of protected images, for example, may not be fair when designed for commercial gain.

Finally, the controversy surrounding "Escape" is a reminder about the danger of showing people in commercial videos, including those used in social media, who have not given their consent to being filmed. Those individuals may have a right of publicity or even claims based on a violation of a right to privacy.

12/04/2012

Welcome to my "Franchising In The Movies" series. For those of you that have been here before, welcome back. For my new readers, a brief explanation: this series is the marriage between my passion (the movies) and my career (I am a franchise attorney). Don't take any of this literally, because none of the analogies in this series are perfect. With that disclaimer, I do think there are some interesting comparisons between movies and real-life lessons in franchising and small business. As an added bonus, these entries are fun to write.

As I write this in December 2012, we are back into the beginning of Hollywood's "awards season": the time when the studios release the movies that they consider to be contenders for the industry's top film awards. At the end of every year, my wife and I make a list of all of the movies we saw that year (our present 2012 count is 125) and create a list, ranking our top 10 and bottom 10 movies for that year.

Last year, the movie at the top of both of our lists was the eventual Best Picture Oscar® winner, The Artist. I thought The Artist had all of the characteristics of a great movie: well-written characters, engaging story, a beautiful score, excellent actors, flawless direction, etc. As I think about the great movies from 2011 in comparison to those I've seen in 2012, I am continually reminded of The Artist. If you haven't seen it yet, you should. It's a magical movie about making movies.

(Spoilers follow; stop reading if you haven't seen the movie and plan to do so. Click here to continue reading).

09/10/2012

This is a second entry in what I hope will be a new series under my Franchising In The Movies blog category. Hopefully, you won't view any of this literally because none of the analogies in this series will be perfect. I'm not here to argue plot points or to talk about the relative merits of the movies; those discussions belong on another blog (maybe I'll get around to creating that other blog one of these days). With that disclaimer, I do think there are some interesting comparisons between movies and real-life lessons in franchising. And because I love movies and I like reading and writing about movies, they make for a fun vehicle for a discussion about franchising.

The Bourne Legacy is the fourth film in the Bourne series. This film, we're told, takes place around the same time as the second movie, The Bourne Supremacy.In The Bourne Legacy, we are introduced to a new character (Aaron Cross) who, we are told, is somehow part of the same program that created Jason Bourne. This program is operated by the shadowy government organization (aren't they always "shadowy" in spy thrillers?) Treadstone. Bourne has "gone off the reservation" and is no longer under Treadstone's control. Officials from other government agencies (I think they're in the CIA, or something) are worried that Treadstone and its operatives will be exposed due to Bourne's activities, which have apparently brought a great deal of media attention.

(Minor spoilers follow. Nothing I say isn't in the movie's previews, but if you haven't seen the movie or its previews, you might want to stop reading here. If you want to read on, click the link below).

08/20/2012

If you are visiting my blog, you'll see that I have this category called "Franchising And The Movies." The category exists because I love the movies -- I see close to 200 films a year(close to 140 of those I see in the theater) -- and many of the things my wife and I like to do center around movies (for example, attending film festivals, traveling to other cities to see movies that won't come to Las Vegas theaters, and collecting movie props). But, you may also notice that although I've been writing this blog for almost three years, there are precious few entries in the category. I'm going to try to change that, starting now.

One of the summer's biggest (and most anticipated) films was The Dark Knight Rises. If you've seen the movie or read anything at all about it, you'll know that the central villain is a character named Bane. Bane is a mysterious, hulking, masked figure who, as the movie begins, is wreaking havoc around Gotham City. Bane's reign of terror interrupts what we learn has been an eight-year period of relatively crime-free peace, enjoyed due to the efforts of Batman, Commissioner Gordon, and (to a lesser degree) Harvey Dent as depicted in the previous film, TheDark Knight.

Having ridden off into the darkness at the end of The Dark Knight, we see that Bruce Wayne has, during the eight years since the events in that movie, retired as Batman and is now living in seclusion in Wayne Manor. Thus, when Bane and his gang of thugs begin upsetting the status quo, there is nothing other than the city's police force to hold Bane in check. As expected, Bane's activities catch Bruce Wayne's attention. He dusts off the cape and the cowl and goes after the mysterious figure.

(Spoilers follow; if you haven't seen the movie, you might want to stop reading here. If you want to read on, click the link below).

06/21/2012

Last year, I wrote this post about a lawsuit by actor Jesse Eisenberg against the producers of a direct-to-video, low-budget horror movie Camp Hell. For those of you who don't feel like clicking on that link to read my previous post, here's a quick summary: in 2007, Eisenberg agreed to appear in Camp Hellas a favor to some friends. He was on set for only one day of filming, and logged only a few minutes of total screen time. Fast forward to 2011: Eisenberg is a well-known actor, having played lead roles in The Social Networkand one of my favorite movies from 2009, Zombieland. Because he was only minimally involved in the movie, he was surprised to see that his face was prominently featured on the cover of the DVD, implying that he starred in the film. His lawsuit asserts various California law causes of action, including claims for unfair business practices and publicity rights.

This week, a Court in California issued a ruling in the lawsuit on a motion to dismiss that was filed by the defendants, Lionsgate Entertainment, Inc. and Grindstone Entertainment Group LLC. In the motion, the defendants argued that Eisenberg's lawsuit should be barred as infringing upon their rights to free speech. Eisenberg argued that free speech rights don't apply because the defendants' actions were commercial speech, and his image was being used for the purpose of leading the public to believe that his part in the movie was more significant than it actually was. The Court agreed with Eisenberg, partially denying the defendants' motion to dismiss and allowing the actor's lawsuit to proceed.

In the small business context, the lesson learned from this lawsuit seems obvious: if you want to use a famous person's likeness to advertise something, you need to be certain that you first obtain their permission to do so. "Free speech" principles aren't so broad that they would protect your "speech" if it is solely commercial in nature.

06/05/2012

A new story in the Las Vegas Review Journal talks about the continued lack of filming incentives in Nevada, an issue about which I have written previously. As discussed in the story, Nevada continues to lose dollars to neighboring states as companies opt to film in places where economic incentives make a significant difference to overall production costs. What kills me about this is that we are losing the opportunity to host t.v. shows and films that actually take place in Nevada, which opt to film in New Mexico or other states that provide substantial production incentives. For example, a new CBS television show "Vegas," which takes place in (you guessed it) Las Vegas, is being filmed in Las Vegas -- the one in New Mexico.

To give you a sense of the net economic impact that is being lost to other states, total television and film revenue in Nevada was $102.5 million in 2011, compared with New Mexico's reported $276.7 million in direct spending in 2011 due to film and t.v. productions. And the state continues to experience what has been called a "steady decline" in filming revenue that has been trending downward for the last 10 years.

Until the legislature understands the value that film and television production can bring to our state and create incentives for filming here, I'm afraid we will continue to miss opportunities and lose dollars to our neighbors. And that will mean fewer jobs for skilled crew members here in Nevada.

I feel badly about my comments about Michelle Williams. She's a very good actress; she's just not one of my favorites. I should have answered Kristin Scott Thomas to that question, instead. Email me if you want to know why, or if you want to know about some of the other movie props and memorabilia that I own. And, although it should be obvious enough by reading the rest of the article, the biggest omission is that my favorite director is Quentin Tarantino (I'm waiting eagerly for his next film, Django Unchained).

12/02/2011

One of my all-time favorite comedies is the movie Bowfinger, in which a down-and-out movie producer named Bobby Bowfinger (played by Steve Martin) makes a movie starring a well-known A-list actor named Kit Ramsey (played by Eddie Murphy) without Ramsey’s knowing participation. Some of the best scenes in the movie occur when Bowfinger and his “crew” create situations around the increasingly-unhinged Ramsey, secretly filming his hilarious reactions to the ridiculous set-ups. Apparently, life has (sort of) imitated art: in a recently-filed $3 million lawsuit, actor Jesse Eisenberg (star of The Social Network and Zombieland) claims that he was exploited in a similar manner by the producers of the direct-to-DVD movie, Camp Hell.

According to the lawsuit, in 2007 Eisenberg agreed to appear in Camp Hellas a favor to his friends. He was on set for only one day of filming, and logged only a few minutes of total screen time. Because he was only minimally involved in the movie, he was surprised to see that his face was prominently featured on the cover of the DVD, implying that he starred in the film. His lawsuit asserts various California law causes of action, including claims for unfair business practices and publicity rights. But, according to Hollywood law blogger Eriq Gardner, the lawsuit reads more like “a consumer class action, saying that the producers are ‘continuing to perpetrate a fraud on the public.’”

Overselling a famous actor’s involvement in a film is a common practice in the industry, although the Camp Hellexample may be one of the worst offenders. But, while there are agreements and rules among various creative unions in Hollywood relating to attribution and credit, there apparently aren’t any that specifically state the number of minutes of screen time that are necessary in a movie before an actor can be marketed as a film’s “star.”

Fortunately, the franchising world has more explicit rules regarding how a franchise can be marketed and sold to potential franchisees. Generally, the FTC Franchise Rule and a number of state laws require a franchise company to provide to a prospect certain types of disclosures regarding the business being marketed. Through a legally compliant Franchise Disclosure Document, a possible franchise buyer will obtain a great deal of information about the franchise being sold, which information should support the marketing claims the franchisor makes generally. Further, several states have specific restrictions on the types of statements that franchisors can make in advertising pieces, which restrictions are further designed to protect against misinformation to franchise buyers. These laws work together to attempt to ensure that members of the public are not lured into buying a franchise based on puffery or overblown claims of success.

It will be interesting to see how the Court handles Mr. Eisenberg’s lawsuit. I wonder if the movie industry will, in the face of the Camp Hell situation, consider adopting more stringent rules about marketing actors?

I would love to hear from you -- have you ever watched a movie based on the claim that a movie was “starring” a certain actor, only to find out that the actor’s involvement was minimal?

Matthew Kreutzer is a Partner at Howard & Howard Attorneys and serves as Chair of the firm's Franchising, Distribution, and Antitrust Practice Group. Mr. Kreutzer, who is based in the firm's Las Vegas office, is a Certified Specialist in Franchise and Distribution Law by the State Bar of California's Board of Legal Specialization.

About This Blog

This blog is dedicated to advancing the franchising industry through the sharing of business, legal, and practical information and ideas. This blog is a service of Howard & Howard's Franchising, Distribution, and Antitrust Practice Group.